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ELCDismissedMigori ELCC No. 660 of 2017 (consolidated with Migori ELCC No. 146 of 2017)· [2020] KEELC 1433 (KLR)

Elisha Okoth Otieno & 2 others v Jared Otieno Aoko [2020] KEELC 1433 (KLR)

Environment and Land Court
15 July 2020
2,322 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed attempts to throw out official land survey reports, ruling they must instead be challenged by questioning the officers during the full hearing.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Migori (Ongondo J) determines a Notice of Motion dated 22nd October 2019 by three plaintiffs in Migori ELCC No. 660 of 2017, a suit consolidated with Migori ELCC No. 146 of 2017, in a land trust and injunction dispute over Kamagambo/Kongudi/1111 and adjoining parcels. By consent orders of 1st July 2019, the Land Registrar and County Surveyor, Migori were directed to visit the suit lands, ascertain the original homes of the plaintiffs and their parents' graves and current occupation, and file reports within sixty days, with two elders from each side accompanying the officers. The applicants sought to set aside, annul or expunge the two reports filed on 30th September 2019, a direction that the officers revisit the parcels in compliance with the consent order, and in the alternative, review or setting aside of the consent order, contending the officers denied the parties the participation of two elders and thereby deprived them of a fair hearing. The respondent opposed, arguing the reports were mere evidence subject to cross-examination and the application was an abuse of process. Framing two issues — compliance with the 1st July 2019 orders and the fate of the application — the court held the two public officers had complied with both orders, that the reports were opinion evidence under Sections 48 and 54 of the Evidence Act, persuasive rather than binding, and that any dispute about the attendance of elders or the contents of the reports should be resolved by cross-examining their authors at the hearing. The application was dismissed with costs in the cause, with liberty to challenge the reports at trial.

Key legal issues

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01

Whether the Land Registrar and County Surveyor complied with the consent orders of 1st July 2019

Holding

The court found full compliance with both the order to visit the suit parcels and file reports, and the order that elders accompany the officers

Reasoning

The two public officers visited the site on 19th September 2019 and filed their respective reports on 30th September 2019. The reports indicate nine persons attended the exercise. The court held that whether the nine included the elders, and any other issues arising from the reports, was a matter for cross-examination of the authors at the hearing of the suit, not for determination on the application.

p. 3
02

The evidential status of the Land Registrar's and County Surveyor's reports

Holding

The reports amount to opinion evidence under Sections 48 and 54 of the Evidence Act and are persuasive, not binding; they are mere evidence to be tested by cross-examination

Reasoning

The court classified the reports as opinion evidence under the Evidence Act, citing Amosam Builders and CD Desouza for the proposition that such evidence is persuasive depending on the circumstances. It follows that a party aggrieved by the reports should challenge their authors in cross-examination at the hearing rather than seek their expungement by interlocutory application.

p. 3
03

Whether the application for review of the consent order could succeed

Holding

The application failed as premature and without merit; the applicants could challenge the reports at the hearing

Reasoning

The court invoked the inherent powers under Section 3 of the Civil Procedure Act, the overriding objective of the Environment and Land Court Act and Article 159 of the Constitution, but held that setting aside the reports was unnecessary since the fair-hearing concerns of the applicants could be met by cross-examination of the officers at the hearing of the suit.

p. 3

Legal principles established

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  • A court shall not entertain an action relating to a dispute as to boundaries of registered land unless the boundaries have been determined in accordance with the Land Registration Act
  • Opinion evidence in reports such as those of the Land Registrar and Surveyor is persuasive rather than binding, depending on the facts and circumstances of each case
  • There is an unqualified obligation to obey orders of a court of competent jurisdiction

Court orders

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  1. 1.The application dated 22nd October 2019 and filed on 29th October 2019 by the applicants is dismissed
  2. 2.Costs of the application to be in the cause
  3. 3.The applicants are at liberty to challenge the two reports during the hearing of the suit

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 46 Rules 13, 14, 16 and 17
  • Civil Procedure Rules, 2010Order 51 Rule 16
  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3, 3A & 63(e)
  • Constitution of Kenya, 2010Articles 7(3)(b), 25(c), 48, 50(1), 159(2)(b), (c), (d) & (e), 165
  • Land Registration ActSections 18, 18(2), 19 and 20
  • Evidence Act, Cap 80Sections 48 and 54
  • Contempt of Court ActSection 4(1)(a)
  • Environment and Land Court Act, 2015Sections 3 and 19
  • Environment and Land Court Practice Directions, 2014Practice Direction number 33(a) and (b)

Cases cited (10)

  • Central Bank of Kenya and another -vs- Ratilal Automobile Ltd and others
    Civil Application No. 247 of 2006
  • Republic -vs- Principal Secretary Ministry of Defence ex-parte George Kariuki Waithaka
    (2018) eKLR
  • B -vs- Attorney General
    (2004) 1 KLR 431
  • Isaac Kinyanjui Njoroge -vs- National Industrial Credit Bank Ltd
    (2018) eKLR
  • Johnson Nyamoko -vs- Otiso Ondicho and another
    (2019) eKLR
  • Peter Ng'ang'a Muiruri -vs- Peter Njoroge Muiruri and another
    (2009) eKLR
  • Hadkinson -vs- Hadkinson
    (1952) 2 ALL ER 567
  • Mutitika -vs- Baharini Farm Ltd
    (1985) eKLR
  • Amosam Builders Developers Ltd -vs- Gachie and 2 others
    (2009) KLR 628
  • CD Desouza -vs- BR Sharma
    (1953) 26 KLR 41
Jurisdiction invoked
Articles 48, 50(1), 159(2)(d) & 165 of the Constitution, 2010; Order 46 Rules 13, 14, 16 and 17 and Sections 1A, 1B, 3, 3A & 63(e) of the Civil Procedure Act, Cap 21; inherent jurisdiction of the court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Elisha Okoth Otieno & 2 others v Jared Otieno Aoko [2020] KEELC 1433 (KLR)", Case Analysis (2020). Migori ELCC No. 660 of 2017 (consolidated with Migori ELCC No. 146 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1433/eng@2020-07-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.